Turtle-Safe Shrimp Case Set Adrift by 9th Circuit

(CN) – A California environmental group cannot challenge a federal certification process meant to encourage foreign turtle-safe shrimp harvesting, the 9th Circuit ruled Friday. The Turtle Island Restoration Network, a group enmeshed in several court cases in the name of sea turtle protection, had claimed that the State Department violated federal environmental laws in exempting some countries from a general ban on shrimp imports harvested using turtle-trapping nets. Every year “tens of thousands” of sea turtles are caught in nets used by commercial shrimpers all over the world, according to the group. The U.S. National Marine Fisheries Service (NMFS) requires domestic shrimp trawlers to use a Turtle Excluder Device, which keeps sea turtles out the nets while letting the shrimp in. The certification process at issue was enacted to encourage similar behavior internationally. When the Turtle Island Restoration Network was part of The Earth Island Institute back in the early 1990s, the institute unsuccessfully challenged the allegedly lax nature of the certification process, arguing that the State Department had improperly exempted large areas from the ban and neglected to consider the actual number of sea-turtle takes in the countries that received certification. Turtle Island’s present case claims that the process violates the National Environmental Policy Act and the Endangered Species Act. The group contends that the State Department should have to prepare an environmental assessment of the country certifications and consult with wildlife agencies. A District Court in Oakland shot down Turtle Island’s challenge. Finding the group’s present lawsuit too similar to the one that failed two decades ago, U.S. District Court Judge Claudia Wilken dismissed the case based on res judicata. A three-judge panel of the 9th Circuit agreed in a ruling published Friday from Stanford, Calif. The panel found unconvincing Turtle Island’s contention that the lawsuits were different because the older case challenged the promulgation of the guidelines while the present case is about the actual certification decisions. “While these two actions may be procedurally different, both arise from the government’s regulation of shrimp imports to encourage foreign turtle-safe shrimp harvesting,” wrote Chief Judge Alex Kozinski for the unanimous panel. “Adopting rules for certifying that countries meet the U.S. standards and actually making the certification decisions aren’t sufficiently different to defeat res judicata.” The group’s “current challenge to the State Department’s … certification process arises from the same transactional nucleus of facts as its earlier litigation,” Kosinski wrote, though he hastened to add that Turtle Island’s legal question had not been answered and that another plaintiff “not in privity with TIRN” is free to continue the fight.